28 February 2007

[During the Bar Exam] Bedi left the examination room to use the restroom and signed a list to that effect. Fagan stated that after a few minutes, Dix sent him into the restroom to see what was keeping Bedi. Fagan said that after he entered the restroom, he heard clipping sounds, similar to a stapler being used. He said that he could see through the crack between the stall door and its frame that Bedi was shifting papers about the size of an index card back and forth. He testified that the paper he saw was not toilet paper. He reported that the “clicking” noise continued intermittently for a short period of time. Fagan reported his observations to Dix. Dix testified that he entered the restroom and heard clipping noises. Dix testified that he saw through the mirror and directly, that Bedi was shuffling papers back and forth with dark lettering on them. Dix said that Bedi had something black in his right hand. Dix described the crack between the door and the frame as “a good sized gap” through which he could see. According to Dix, the stapling noises continued the entire few minutes that he was looking.

After making these observations, Fagan heard Bedi come out of the stall after the toilet flushed. Fagan asked Bedi for his notes, but Bedi claimed he had none. According to Fagan, Bedi claimed that he was taking medication for dyslexia. Fagan asked for the medicine bottle or a prescription, neither of which Bedi could produce. Another proctor asked Bedi to empty his back pockets, untuck his shirt, roll down his socks, and lift his pants legs. Dix testified that in his back pocket, Bedi had “a pair of little black scissors about five or six inches long.” Bedi told Dix that he had a “bad nail” and that he needed the scissors to trim it. However, Dix testified that he saw Bedi holding the scissors in his right hand, the same hand on which he claimed to have the bad nail. No papers were found on Bedi’s person, and no notes could be found after a thorough search. Bedi was allowed to finish the exam, but was ultimately unsuccessful.

My High School starts its playoff tonight against Sayre High and should beat them handily (yeah, I know I'm tempting fate by saying that) and Friday at 8 p.m. play the #1 ranked team in the Commonwealth of Kentucky, Scott County (which shredded Henry Clay High School last night). I can't make it to either game but I am hopeful that at least Friday's game will be streamed over the internet by WLAP. If there are any Kentucky folks out there let me know if you've got the scoop on if, when, and where the high school games will be played on the net.

I think I'll be able to listen to Centre's Friday game on Capital's streaming radio. I'd prefer to find another source. I still haven't found a source where I can listen to the Saturday game. If anyone knows someone who's streaming that over the net please let me know.

Not that I think the case seems to have a lot of merit to it. Police chase policies can be argued. However, if you're the guy who was speeding and refused to pull over you really don't have a heck of a case if you sue the deputy who took actions to stop you; your injuries are pretty much your own fault. If a 3d party had been hurt in the crash that person would have a heck of a case, but that's not what went on here.

Of course, this is my relatively uninformed opinion. A jury might look at the tape and decide that the deputy's actions were grossly disproportionate for the speeding which was the original basis for the attempted stop. Of course, this article makes it look like the court is not going to allow the jury to do its job (decide the facts) because the court is going to preempt by deciding this fact while claiming to decide a legal issue.

[addendum]Centre took the lead from the beginning and never looked back: 72-57. Now on to the NCAA (if the professors will let them go).

My High School is ranked number 4 or number 3 in the Commonwealth of Kentucky and starts the 42d district playoff this Wednesday. If things turn out the way they should on Friday Bryan Station should be playing the number 1 team in the Commonwealth, Scott County. And, since the world is an unfair place and the top two teams from each district go to the 11th Region, Bryan Station and Scott County will probably have to face each other again to see who gets the single slot for the Sweet Sixteen.

Last weekend I went to Kentucky and watched both my alma maters play. Bryan Station (white) was playing the number 7 ranked Tates Creek Commodores (maroon).

24 February 2007

22 February 2007

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile4: Amazing - Instantly began rereading it and quoting it to friends3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate "Relentless Pursuit", a book by Kevin Flynn about a murder case he prosecuted as a 3.5.

I think that whoever chose the title and tagline ("A True Story of Family, Murder, and the Prosecutor Who Wouldn't Quit") did a disservice to it. I came to the book expecting an extremely difficult case with little evidence, an incredibly evil villian, and a trial of epic proportions throughout which Mr. Flynn had to fight past setback after setback to win. Instead it was a case with solid evidence, an incredibly evil defendant who commited two gruesome murders, and a fairly typical trial which only had one point where the prosecution could have sufferred a major setback.

I was looking for a book with a 100 page setup and a 250 blow-by-blow of the trial. Instead, there was 250 pages of setup and extra-courtroom stuff and about 100 pages about the trial. I suspect this was because the trial really wasn't all that difficult. The evidence which was found the first night was damning and the outcome of the trial - barring some major hiccup - was going to be two murder convictions.

At this point, let me say that a layperson may get more out of the setup than I do. I've seen extended families show up for trial (and BTW, this isn't solely a "Black thing", I've seen White families show up en masse as well). I've seen the religion which people find comfort in while in the courthouse, but don't seem to allow to inform there lives on the street. I've seen any number of things checked out by investigators turn out to be dead ends and therefore not really be relevant to the case. The emotional hooks and background information might grab and inform people not used to this sort of thing more than it did me. I was chomping at the bit for the trial (after all, the book is supposed to be about the prosecutor - I wanted to see the prosecution).

An then, in one blinding flash, I was hooked. On page 220 the judge hijacks the case. It's a pretrial hearing to determine which of the defendant's statements should be admitted pursuant to a boilerplate Miranda warnings motion. Suddenly, the judge starts talking about excluding the most important physical evidence in the trial. She's clearly leaning toward throwing the evidence out; she's also just as clearly wrong in her understanding of constitutional case law. It's a classic moment and every crimlaw attorney in the world has been there. We watch as Mr. Flynn scrambles and even goes so far as to call an appellate court expert for advice before he goes back in to argue against the judge and the defense attorney. But then it all passes when the judge rules for the prosecution. Mr. Flynn offers a sciological possibility for the judge's ruling; personally, I think she probably went back and looked up the law (or had a clerk do it), realized she was wrong, and was honest about her mistake.

From this point on the trial plods forward to it's inevitable conclusion. Some of the things which happen are so very typical. A witness shows up dressed inappropriately, the defendant is dumb enough to get on the stand and he testifies in a way that helps to bury him. The jury semi-hangs, but it's sent back to the jury room to deliberate further (without even a dynamite charge).

The book is interesting, although I think Mr. Flynn could have used an editor who was more ruthless in cutting and compacting the story. I reccomend it more for the layperson but think that anyone not used to dealing with the realities of life and crime in a city would find it an interesting read.

From Relentless Pursuit, written by D.C. prosecutor Kevin Flynn:----------------------------------------------------

I never approach jurors after a trial is over - I'd rather go on in blissful ignorance, believing every verdict is based solely on the merits of the prosecution's case - but once I was cornered in the courthouse corridor by a group looking to unburden themselves of anecdotes about the experience. One said, "You know what really convinced all of us he was guilty?"

"What," I said, holding my breath.

"The fact he never said that he was innocent."

Well, I thought, he did say he was ten miles away from the scene of the shooting at when it happened; maybe he thought that was enough.

21 February 2007

Heck, if you're going to use a dated, throwback language why not just default to the dated, throwback language? I'm pretty sure the Church wouldn't sue for infringement on it's current exclusive use of Latin.

16 February 2007

It's interesting to watch how different courts work. I had experience with a number of courts around the Richmond area and seen numerous variations on a theme. Then I came out to Wise and the theme was different. It wasn't so different that it was incomprehensible. It was more like when you switch between two themes on an electronic device - you know everything is there, it just takes a while to figure out exactly how to do something that you used to be able to do by rote. Still, eventually it comes naturally again.

There were a number of small differences. Some things I had almost always seen done verbally, ie. continuances and nolle prosequi motions, are done with a typed order - as are amendments to indictments, as opposed to just walking up to the bench and scratching through and writing the change in, which was how I had seen done in the vast majority of cases. At first, I found the former annoying (mostly from the fact that I kept forgetting to type them up before I came to court), but the latter makes sense to me (after all indictments should be legible). Of course, I was used to popping up and down every time a judge came into the courtroom in the Richmond area; other than at the beginning of the day no one stands when the judge enters or exits here. In fact, if there is a lull in the courtroom a judge might just stand up and go get something he needs from his office. I think they thought I was crazy when I first got here because I was popping up and down all the time. Another difference is the way indictments are handled. I'd never seen multiple counts on an indictement before I got here. Around Richmond every single charge got its own indictment. Here in Wise there is one indictment with a count for every charge. In effect, they accomplish the exact same thing and I think the Wise way is more efficient; the only possible problem I can see with it is if the grand jury decides it wants to not true bill count 4 of a 22 count indictment it might not true bill the whole thing, but that seems a very slight possbility to me.

One of the more confusing things that came up was differences in the the way plea agreements are written in the two areas. Specifically, the two areas use different language when they discuss probation after incarceration. I was used to some variation of this:

The defendant shall be sentenced to 5 years with 5 years suspended for 3 years. He will be subject to an indefinite period of probation.

What that meant was that the defendant would be under probation for a period of 3 years with 5 years imprisonment possible if the judge decided he had violated his probation. "Indefinite period of probation" meant he would be supervised until his probation officer decided he didn't need to be any more. Usually that was about a year of probation. After the probation officer released him the time still "hung" above his head for the remainder of the 3 years and if the court decided to it could still bring him back and make him serve the time.

Fat, dumb, and happy, I started writing plea agreements using this format. Unfortunately, before I realized the language used here is very different I had sent out 20 or 30 plea agreements. In Wise the language used to accomplish exactly the same thing is:

The defendant shall be sentenced to 5 years with 5 years suspended. Probation shall be for 3 years. Supervised probation shall be for 1 year. Unsupervised probation shall be for 2 years.

Nobody understood what I was writing in my plea agreements. In particular the "indefinite period of probation" confused people a lot. So, my solution was to start writing "3 years of probation with an indefinite period of active probation which shall end at the probation officer's discretion after 1 year." This accurately reflects what actually happens because, whether his time has run or not, there are usually conditions which a probationer is required to fulfill before he can get off supervised probation. Still, the judges had trouble getting their eyes past "indefinite period of probation." The judge who sits here normally had it figured out after a couple plea agreements but when we had substitute judges it would confuse them every time. One judge, after I had spent about ten minutes explaining what it meant, just looked at me and said, "Where did you get that language?" You could pretty much hear the "n00b" attached to the end of the question.

At this point my last vestige of stubborness gave way and I got ahold of one of the other prosecutor's plea forms and shamelessly plagiarized the language which everyone was expecting to see. So now everybody's happy with the language. I'm not sure everyone is happy with my plea offers (at least I hope some of the defendants aren't), but everybody's happy with the language.

I didn't try the case and I had to hand it off to another to argue after I took the job in Wise, but I wrote the argument. As I read through the opinion it seems that the appellate court has it right. I am confused by one point. The Court of Appeals, on its way to a race based Batson reversal, blows off my argument that the strikes were also impermissible because they were gender based. The Court states that this was not preserved by the trial lawyer. I'm very familiar with the Court's strident refusal to accept an error not preserved by the defense during trial. I wouldn't have argued the gender issue without it being preserved - if for no other reason than to keep the argument as simple as possible. Unfortunately, I don't have a copy of the transcript anymore because I seem to remember the trial attorney saying he was objecting because the prosecution had struck the 2 female jurors. Maybe I'm wrong, but I put a good bit of argument into a moot topic if that's not what he said. Not that it matters now.

01 February 2007

There's a man who was declared incompetent and hospitalized many years before I got to the Commonwealth Attorney's office. However, he's got it together enough that he files the right papers to make sure he gets back in front of the judge at every opportunity he is allowed. Various attorneys have been appointed to represent him in various hearings, all for naught as he is returned to the mental facility each time.

I get assigned to his latest effort to get out. The doctors come in and testify that he needs to stay in. The latest attorney appointed to represent him is hitting all the right points and asking all the right questions but it's pretty obvious this guy is not ready to be released into society. Finally, the patient exercises his right to testify. He testifies as to various and sundry things, but one thing catches my attention: he claims that the reason he lost every one of his prior hearings was because of ineffective assistance of counsel.

I know the current counsel is going to see the same complaint in a habeas or bar complaint and I also know that the attorney is doing the best job he can with the very little he has to work with. So, during my cross examination I decide to try to be a little bit helpful.

Me: "Mr. Smith, you testified before that the reason you lost in your prior hearings was because each of your prior attorneys was ineffective?"

Smith: "Yes."

Me: "And what about Mr. Green, today? Has he been effective?"

Smith: (pause)(you can see the gears turning in his brain)

Me: "I mean, hasn't he done everything he can for you? Hasn't he been effective here in court?"

Smith: (pause) Well . . . that really depends on how things turn out today.

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Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.